William S. SMITH
What American constitutional government most urgently needs at present is for our Madisonian institutionsthe presidency, the Congress, and the courtsto wrest back control of national security policy from an unelected and increasingly rogue national security establishment.
That ominous challenge to constitutionalism was on full display with the recent op-ed piece in the New York Times by retired Admiral William McRaven, in which he brashly warned that unless Trump jumped aboard the Forever War bandwagon, he must be removed, and "the sooner the better." The U.S. must have a policy, McRaven said, that protects "the Kurds, the Iraqis, the Afghans, the Syrians, the Rohingyas, the South Sudanese and the millions of people under the boot of tyranny."
How did we get to the point where a former senior military officer calls for the removal of a duly elected president because he doesn't stand shoulder-to-shoulder with the Rohingyas? McRaven's op-ed represents something new in American politics: the assertion that an elected president is illegitimate unless he works to spread our "ideals of universal freedom and equality" through military action and alliances. McRaven also argued that it is "the American military...the intelligence and law enforcement community, the State Department and the press," all unelected institutions, that now embody the true American civic religion and protect its "ideals."
Even though President Trump's promises to end wars and question expensive alliances were quite popular with the electorate, in the view of many in the national security establishment, elections do not bestow constitutional legitimacy. They assume instead that their "ideals" and belligerent foreign policy represent the true animating principles and governing force of the nation. To question them is tantamount to an "attack" on America "from within."
While the rank-and-file military are among the most patriotic of Americans and show unwavering support for the Constitution, there is a huge class of elite national security bureaucrats who, whatever they may say on ceremonial occasions, believe they are above the Constitution.
Wait a minute, you say, this is hyperbole. The Constitution provides for civilian control of the military and other national security institutions. The problem is that in practice the Constitution does no such thing. As Samuel Huntington pointed out, the constitutional oversight of the military establishment by elected civilians is fractured, non-linear, and tenuous. The president is commander-in-chief, a title more than a function, and Congress controls the purse strings, the power to declare war, and the confirmation of senior national security nominees. The National Guard reports to presidents and governors. Anyone watching a general, admiral, or CIA director testify before Congress is aware that the national security establishment has more than one boss. Who in the civilian government is ultimately in control? Everyone and no one.
Huntington points out that, when the Constitution was framed, there was no real concern about controlling the military, and the intelligence community did not even exist. The military arts were not highly specialized and militia officers were typically members of the political establishment who were elected or appointed by local legislatures. Military leaders like George Washington were part and parcel of the political culture of the ruling class. There simply wasn't a danger of a rogue national security establishment in 1789, and for all their sagacity, the Framers of the Constitution did not foresee the emergence of one.
In the mid-19th century, all this changed. Militaries became highly specialized and officers became professional soldiers. A martial culture was developed that was distinct from politics. Military "academies" were founded to inculcate this new culture and to teach the new specialties within the military arts. As a result, Huntington argued, presidents needed more "objective" control of national security institutions. When Generals McClellan and McArthur famously questioned the national security decisions of their presidents, Lincoln and Truman fired them respectively. But the tradition that the national security establishment must take orders from the president is a political, not a constitutional, precedent, and it is breaking down.
Tufts law professor Michael Glennon points out in a recent essay in Humanitas that the Cold War brought something new and ominous in military-civilian relations. The national security bureaucracy became so large and omnipotent that the Madisonian branches of government became something like the British House of Lords, symbolically important but in reality without much power. The executive, legislature, and judiciary became a kind of Potemkin village, with real national security power lodged in, as Glennon describes it, "a largely concealed managerial directorate, consisting of the several hundred leaders of the military, law enforcement and intelligence departments." As this bureaucracy grew, Glennon argues, "those managers...operated at an increasing remove from constitutional limits and restraints, moving the nation slowly toward autocracy."
Glennon also points out that, prior to Trump, there was an unwritten pact between the bureaucracy and the Madisonian government: never publicly disagree. While national security policies have long been crafted and maintained by deep state bureaucracies, everyone played along and told the public these were the result of "intense deliberations." Yet a few people noticed that, whether under Republican or Democrat administrations, national security policies never really changed, intelligence operations were never disrupted, and even peacenik-seeming presidential candidates became warlike presidents. For decades, neither elected officials nor bureaucratic leaders publicly acknowledged that American national security policy was being run by what Glennon describes as a "double government," with elected officials largely impotent.
However, with the staggering intelligence failure that was 9/11 and two protracted and losing wars in Afghanistan and Iraq, some have begun to question whether the "grown-ups" in the national security bureaucracy are even competent. Trump gave voice to those concerns in the 2016 campaign, and the result has been a breakdown in the Cold War truce between the two components of the double government. Leaders of the national security establishment, who know they have real power, took precautions in the unlikely event of a Trump victory and then proceeded to try to overturn Trump's election. When they failed, they partnered with Congress to have Trump removed through impeachment, taking full advantage of the fractured nature of civilian control of national security institutions. Impeachment witnesses, such as Lieutenant Colonel Alexander Vindman, have been unanimous in their implicit belief that the foreign policy of the United States should be managed by a professional class of bureaucrats, not by the elected president.
The American constitutional order is thus in great peril. Those obsessed with getting rid of the president should consider that, were Trump to be removed, it could be the constitutional equivalent of Julius Caesar's crossing of the Rubicon.
Call Donald Trump cartoonish and erratic, but he also happens to be the duly elected president of the United States. And while we must admire the selfless service of so many in the national security establishment, as citizens, we also have the right to ask people like William McRaven: who elected you?